The Judgment of the Court was as follows:—
Mookerjee, C.J:— This is an appeal by the Plaintiffs in a suit for account against a Tehsildar of their estate who had been appointed by a Receiver who was in charge of the estate under an order of Court.
The Courts below have held that the suit as framed is not maintainable, but they have made a decree in favour of the Plaintiffs for a sum of Rs. 463-14-6 ps. which it was established was money belonging to the estate, but still in the hands of the Defendant. The Plaintiffs have contended that the suit as framed was maintainable and an enquiry into the accounts should have been directed at their instance. We are of opinion that this contention is not well-founded.
It was ruled by this Court in the case of Jatindra Narayan Acharjya v. Rajendra Kishore Das that a suit for account is not maintainable by the owner against a Tehsildar who was appointed by a Receiver to his estate. The reason assigned for the decision was that the Tehsildar was a sub-agent under the Receiver who might be regarded as an agent of the principal, and, as sub-agent, he was liable to render accounts to the Receiver and not to the principal. On behalf of the Appellants, the correctness of this decision has been called in question, and we have been invited to refer the matter to a Full Bench; but we are of opinion that the case is well-founded on principle. A suit for an account of the description now before us is really on the same basis as a bill of discovery, and such a bill can be sustained only on proof of fiduciary relation between the parties. It has been argued that the Receiver appointed by the Court is really a representative of the true owner and that consequently an officer appointed by the Receiver stands in the same position as an officer appointed by the owner. This contention is manifestly fallacious. The Receiver is not a representative of the owner: he is an officer of the Court.
It has further been argued that in the present case the Receiver has been discharged and that the Plaintiffs are accordingly entitled to proceed directly against the Tehsildar appointed by the Receiver. There if plainly no substance in this contention. Although the Receiver has been discharged, it is still open to the Plaintiffs, if so advised, to surcharge him in his accounts and obtain relief against him. [See in Re Edwards ]. On the other hand, the decision of this Court in the case of Osmond Beeby v. Khitish Chandra Acharjya Chowdhury shows that a suit may be maintained against the Receiver if it is established that he has monies belonging to the estate still in his hands, notwithstanding his discharge. It follows that the Courts below have rightly held that a suit for account, as framed, does not lie.
The result is that this appeal is dismissed with costs.
Fletcher, J.:— I agree.
J.N.R
Appeal dismissed.